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Chapter 16

Creating a new statutory power

Part 6

What safeguards are provided in the legislation?

Legislation should include safeguards that will provide adequate protection for the rights of individuals affected by the decision.

Prescribed limits as to the extent and exercise of the power (see above) are key safeguards; however, it may be necessary to include additional safeguards to ensure the rights and interests of individuals are protected. An additional consideration is ensuring that the safeguards that apply are appropriate, having regard to the full range of people who are affected. The safeguards and procedures that are appropriate may differ where the people affected are mostly people with little access to legal representation (as opposed to corporate entities).

What is considered to be an adequate level of protection will increase as the interference with the rights of individuals increases. The rules of natural justice (see Chapter 3) will apply; however, the flexible nature of the doctrine means that it is good practice to explicitly identify the specific protections that apply so as to avoid any uncertainty. The following protections should usually apply to the exercise of a statutory power:

the rules and criteria by which the power will be exercised should be specified in the legislation;

a fair procedure should apply (this may include the right to make submissions, the right to be heard, and the right to produce evidence in support);

decisions that affect a person’s rights or interests should be reviewable in some way (see Chapter 25).

Where the power involves the making of a decision, the decision maker should be independent of the parties whose interests are affected. If this is not practicable (such as in administrative decision making), an independent means of review or appeal should be available.